Mike Cernovich shares his thoughts on law, politics, and current affairs.

March 07, 2005

Wilkinson v. Dotson - Practical Effect

What will Wilkinson mean?Professor Berman wants to know: Will "Dotson ... bring a new wave of § 1983 litigation." I'd love to hear Norm's answer. Here's mine -- In a word, yes.

Before Wilkinson v. Dotson,
parole procedures were almost unreviewable. The parole board usually
stamped a big bold "DENIED" on the application. There wasn't much
resource for the prisoner, other than to wait patiently for another
hearing. Most people thought there was little to do. Indeed, the
ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson is that the full panoply of
constitutional challenges are available to the prisoner. So long as
the prisoner styles his action as one for limited declaratory and
injunctive relief, the section 1983 action will lie. What do I mean by
limited?

The prisoner can not ask that the parole board's findings be
overturned. But he can now get a declaratory judgment from a judge
stating that the parole procedures were invalid. And thus, the
prisoner would be entitled to a new hearing. However, the judge can
not rule: "Therefore, the prisoner should be granted parole [his
sentence is reduced]." The issue is one of procedure.

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons
(holding that 1983 plaintiff must face imminent injury from
unconstitutional practice to meet Article III case or controversy
requirement), the prisoner could invalidate a parole board's procedures
before facing the parole board.

Of course, please don't forget about the PLRA!

Of course, we can not read Wilkinson in a vacuum. The
contours of the constitutional rights, if any, available before the
parole board are yet to be drawn. But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer
to help prisoner's file 1983 actions to ensure that parole procedures
are constitutional. It will be rewarding and educational.

Comments

What will Wilkinson mean?Professor Berman wants to know: Will "Dotson ... bring a new wave of § 1983 litigation." I'd love to hear Norm's answer. Here's mine -- In a word, yes.

Before Wilkinson v. Dotson,
parole procedures were almost unreviewable. The parole board usually
stamped a big bold "DENIED" on the application. There wasn't much
resource for the prisoner, other than to wait patiently for another
hearing. Most people thought there was little to do. Indeed, the
ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson is that the full panoply of
constitutional challenges are available to the prisoner. So long as
the prisoner styles his action as one for limited declaratory and
injunctive relief, the section 1983 action will lie. What do I mean by
limited?

The prisoner can not ask that the parole board's findings be
overturned. But he can now get a declaratory judgment from a judge
stating that the parole procedures were invalid. And thus, the
prisoner would be entitled to a new hearing. However, the judge can
not rule: "Therefore, the prisoner should be granted parole [his
sentence is reduced]." The issue is one of procedure.

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons
(holding that 1983 plaintiff must face imminent injury from
unconstitutional practice to meet Article III case or controversy
requirement), the prisoner could invalidate a parole board's procedures
before facing the parole board.

Of course, please don't forget about the PLRA!

Of course, we can not read Wilkinson in a vacuum. The
contours of the constitutional rights, if any, available before the
parole board are yet to be drawn. But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer
to help prisoner's file 1983 actions to ensure that parole procedures
are constitutional. It will be rewarding and educational.